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February 03, 2014

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Spenny

I do not know the specific situation at these law schools, but this comment is more of a general concern about faculty long past the normal retirement age. I think there should be a legal way for a school to say -- hey, we do not need all the faculty we used to. We are asking everyone who is age (to pick a number) 70 or over to simply walk away without a package or buyout or anything.

I understand that if a school needs to go after the people that are still in their normal working years such as 55 or 60 they probably need an inducement. But at some age people should just be retiring to make room for others. In NY, for example, state judges retire at 70 -- law school professors should as well, particularly in time of exigency.

VAP

I would expect that most such programs target older, more expensive professors (who tend to be white and male too). Since new hires are more likely to be non-white, non-male, younger and less expensive, I'm not sure why you are concerned about a "gendered transfer of institutional resources" from junior women to senior men. In fact, it seems quite the opposite.

please explain

I posed a question about this sort of issue on a previous thread.

Should tuition dollars be spent to help send faculty into an early retirement?

Presumably in trying to think about this, one way to characterize it would be 'how many years of pay or equivalent is a faculty member going to receive for being 'bought out'?'

What is reasonable when it comes to a number like this?

anon

THis post is riddled with teh common insulting language ("scam-speak") so typical of these sorts of posts. It is incredible that, while writing about the effects of a set of problems, the author insults and demeans those who identified these problems. Had legal academia listened, perhaps a means to mitigate these effects could have been devised. Now, we have entered the consequences stage, met by representatives of legal academia with posts like this one, which is simply creating bogus arguments, designed to appeal to the sensibilities of legal academia, in a transparent attempt to ward off the inevitable effects of a stubborn refusal to acknowledge any fault for the current state of affairs.
Here's my favorite sentence:
"there are also potential conflicts of interests issues if the person (e.g. dean) administering a buy-out program is themselves eligible for a buy-out."

Jeff Redding

VAP: Thanks for commenting. Absolutely, in some contexts, the transfer of institutional resources might work opposite to the way I've diagnosed here, but I (at least) would find that far less ethically problematic, i.e. I would not find it problematic for junior women to benefit (for once!) vis-a-vis senior men.

Let me emphasize that I think the ethical issues are likely to be, and to work, in different ways in different institutions depending on their demographic and other peculiarities. Certainly the 'gender transfer' issue is likely to work in different ways depending on institutional demographics and also whether a given institution's buy-out program actually 'works,' i.e. it actually saves the law school money over the long haul. Especially with a strong conflicts problem, it could be that a buy-out program is designed and implemented by those to benefit from it most, and not the institution. Putting aside that issue, predictions about how long people would have stayed working absent the buy-out could also be wrong, and the program *could* end up being more expensive than just letting people retire as they may.

So, 'it depends.'

JP

Other law schools have already engaged in actions similar to (or worse than) Albany and Seton Hall. I guess the impacted parties signed NDAs and the remaining professors have good reasons not to leak (and hurt their employers), especially if the school has shown its willingness to fire tenured professors. Tenure is no longer a significant protection at a number of law schools.

CHS

JP how can we know what you are saying is correct, that you have not been given bad information?

CHS

I mean, "worse" than threatening to fire tenured professors would be actually firing them. Where has that happened, other than for cause?

Ellen

I worked at a university that offered buy-outs on a regular basis to classes of employees, including faculty (even ten years or so). This included the law school.

Buy-out are structured to include a given classes: all tenured faculty, for example, whose combined age and years of service totaled a given number (70 or 80). This ensured that senior people qualified, while junior did not. For law faculty, the buy-out was two years' salary plus health coverage for five years.

Keep in mind that for many, health coverage is more important than the cash.

In most instances, some but not all of the dead wood often targeted in these deals took the bait, as did some people that the school would have preferred not to lose, but had other career options or were financially comfortable so the money was not an issue.

Obviously, the idea is that the faculty slot is not filled with a new prof -- at least for the two years that the school is paying what is a phantom prof. I understand that my former school is now doing a couple of buy outs a year and senior profs are more willing to take them given the writing on the wall.....

Nancy Leong

Jeff, I don't mean to take this off topic, but it seems to me that the questions you have raised about buy-outs also raise the larger question of what faculty compensation should look like more generally.

For example, we might imagine an alternative compensation model in which faculty base salaries were much lower and less differentiated by seniority, and a larger percentage of compensation came in the form of merit pay determined by teaching effectiveness, scholarly productivity, and service to the institution. The buy-out incentives would be quite different in that model.

Your goal in this thread may be to frame the discussion more narrowly -- i.e., to think through current questions of ethics while holding current compensation systems static -- in which case this comment isn't particularly helpful. But I wanted to at least raise the possibility of manipulating other variables that could affect the ethical calculus.

JP

My school fired two tenured faculty members because of "financial exigency." The administration probably could have made a decent "for cause" argument for the people they fired, but they did not try. The dean chose the faculty members to fire with no faculty input. The board of trustees declared a "financial exigency" and directed the dean to cut costs by firing faculty members, but our financials were somewhat similar to Albany's, as far as I can tell. We are a private, low-ranked law school. I do not see anything good coming of exposing the name of my employer. I doubt I could find a teaching job elsewhere in this market. Also, I do not feel that badly for the dead wood professors they pushed out because both were below average teachers and neither had published much recently. I wish they would have fired them "for cause," but that may not have been possible with the glowing reviews they used to give everyone each year. The administration did not offer buy-outs, but I did hear that the school paid the tenured professors some amount after the professors retained attorneys and threatened to sue. I am not sure how much the professors ultimately settled for and amazingly this has all been kept off the blogs. I have heard of a couple similar stories from reliable sources. It is possible, but unlikely, that these friends are giving me bad information.

ATLprof

Question for anon @ 12:35:

What identifier should be used? It's a genuine question that I have struggled with in previous discussions. I don't want use a term that could be taken as insulting, but I don't know any other identifiers. I have come up with longer phrases that cover it, but that becomes awkward writing after a point.

As an aside, I don't see "scambloggers" and similar terms as insulting in and of itself. I don't hear it as such in my head. But I can see that its use has often been paired with derogatory comments, so it can be seen as being used to insult.

*(sometimes deservedly so because of the behavior of some in that group)

MacK

The usual problem with buyouts in industry, more common in Europe (early retirement or voluntary redundancy) is that those that can take the money and run - which means that the employees with the most valuable skills take the (often tax free or largely tax free) package, have a nice vacation, pay down the mortgage and start their new job (usually offered before they take the package) in a few weeks, often with a pay raise. The company they depart from is left with the deadwood and the marginal. I know of people panicking when they thought that they would miss out on the package, having decided to take the new job anyway.

Transfer that experience to law schools - who is likely to take a buyout? Professors who could get lucrative private practice work - isn't this a group (professors with practice experience and practice skills) that critics of current law schools are demanding form larger proportion of faculty? Professors with strong teaching skills (ditto)? Professors whose legal writing is useful, recognized and influential (i.e. non-scholarshit)?

Ethics aside, it is easy to see how offering buyouts could prove counterproductive in law school reform - cost needs to be cut, but is this the wisest way?

CHS

@JP-- Thanks. No point in saying names. I just wondered whether this was from personal experience. Getting rid of older faculty, particularly outside of the law school context, is part of the trend toward using adjuncts instead of tenure track professors-- people who have no benefits and no real job protection. This is part of the drive to do away with job security of any type. Back to the 19th century for us all.

That aside, it will be interesting to see how all of this plays out.

Scaramanga

JP: It's entirely possible that those professors were told they could either be fired for cause, or fired for financial exigency, and they (logically) chose the former over the latter.

anon

ATL:
Thanks for the question, because it would be helpful to eliminate the insulting way that so many profs refer to their critics. These critics have been, in the main, proved justified, though certainly, in some instances, they engaged in the same sort of petty, vindictive, nasty and arrogant behavior typified by the sort of reactionary defense heard so often from some in legal academia.
This passage from the post was I thought counter-productive:
"To put it crudely (and to temporarily inhabit a fantasy of how I imagine a law school scam-activist thinks), one should probably have a response to concerns that the very creation of a buy-out program rewards ‘scam professors,’ e.g. those who have failed to be consistent producers of both scholarly research and quality teaching. (NB: Since I don’t talk scam-speak, this is surely a problematic translation.)"
By characterizing any critique of the legal academy as "scam speak" the author evokes a reference group: I think those who follow these blogs know the most sensitive and vocal members that group. These persons tend to demonize their critics, and worse. Much could be written about this, but suffice it to say that I believe most folks who follow these discussion know these actors, and the extent of their projection.
So, here's a suggestion. A fair description of critics might be "critics."
(Some might say "reformers" but that would be a value judgment that I think would take most law profs back to their defensive and hostile stance.)
The term "critic" is descriptive, but not linked to an entire body of truly embarrasing outbursts by some in legal academy when the perception of critics is expressed.

anon

And, a post script.
The "scam" was the dramatic increase in tuition as employment prospects fell, combined with questionable ways of presenting those prospects to prospective students.
What is under discussion in this post in an effect of that conduct by the law academy: conduct from which most law profs benefitted directly and in which many participated.
The failure of this group to hear the valid voices noting these conditions, and to respond to changing and dynamic market, while all the while dismissing those voices as "scam bloggers" is sort of troubling. Moreover, hiring new profs further and further removed from teh reality of the profession for which their institutions claimed to prepare students has contributed to teh disdain of practice demonstrated by so many in the legal academy, and their utter inablity to fathom and respond to changing needs.
But again, this has nothing to do with this post, which addresses to what extent these actors should be held accountable or rewarded.
The issue of responsibility is, perhaps, established. Now, we are debating teh consequences.
SHould there be none?

BoredJD

It really depends on the negotiating power of the person being bought out. A powerful dean or faculty member might demand or negotiate a sizeable compensation package. This is ultimately paid on the back of a massive run-up in tuition that left a lot of students deeply in debt, and appears more like a former executive "getting theirs" while fleeing a busted out company. The costs are ultimately passed on to the students they profess to serve. It also makes one wonder exactly what a law school was getting all those years for so much money.

Now maybe the school had to offer such a perk in order to save many more millions that would have come. But it still stinks to high heaven. Frankly, the people who took massive salaries on the backs of broke kids should behave as if they are ashamed (and should work for less money to fix the institution), not entitled to more - especially when they can line up another job.

The more modest buyouts offered to lower-level administrative employees are not going to be seen this way, because they appear more like a take it or be fired situation and less like something extorted through threat of litigation by relatively powerful actors (the scenario in JP's post).

I suspect that at some law schools, the faculty buyouts are more like the former, at others, the latter.

Ellen

MacK. The experience at very non-elite school was that older tenured faculty close to retirement took buy-outs. The school did not have any faculty that would be sought by other law schools for teaching or scholarship. None could go into private practice, either, so the buy out was a non-starter for most. I would think that this is the case at all but the very top schools.

That's why situations like Albany are more likely to occur and why so many law faculty are in denial about the future of legal education: Most are unemployable -- either at other law schools or in practice. Deep down, they know it.

My school had only one or two faculty make lateral moves in the near twenty years I was there and these were usually tenure track people.

Ellen

MacK: I should clarify that my recent comment referred to my law school. In terms of taxes, etc., my options were to take the buy out in one or two payments. Thus, taxes were almost 50% of the payout. Wish this was Europe!!

I should also add that my former school is offering individual buyouts to profs and the three who took the deal most recently improved the overall quality of the faculty tremendously by doing so!!

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